Under the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), an employer may not deny most past or present members of the uniformed service initial employment, reemployment, retention in employment, promotion, or any benefit of employment because of his or her status. USERRA applies to all employers, regardless of size, and it applies to part-time and full-time employees. It does not apply to independent contractors.
Generally, if you have been absent from your position of civilian employment by reason of service in the uniformed services, you will be eligible for reemployment under USERRA by meeting the following criteria:
(1) The employer had advance notice of your service;
(2) You have five years or less of cumulative service in the uniformed services in your employment relationship with a particular employer;
(3) You timely return to work or apply for reemployment; and
(4) You have not been separated from service with a disqualifying discharge or under other than honorable conditions.
Additionally, an employer may not retaliate against most past and present members of the uniformed service for seeking to enforce USERRA rights.
Most past and present members of the uniformed service also have rights under USERRA to certain benefits:
- If you have coverage under a health plan in connection with your employment, the plan must permit you to elect to continue the coverage for a certain period of time;
- You are entitled to the seniority and seniority-based rights and benefits that you had on the date your uniformed service began, plus any seniority and seniority-based rights and benefits that you would have attained if you had remained continuously employed;
- If you are reemployed in an escalator position, the employer must compensate you at the rate of pay associated with the escalator position. The rate of pay must be determined by taking into account any pay increases, differentials, step increases, merit increases, or periodic increases that you would have attained with reasonable certainty had you remained continuously employed during the period of service; and
- On reemployment, you are treated as not having a break in service with the employer maintaining a pension plan, for purposes of participation, vesting and accrual of benefits, by reason of the period of absence from employment due to or necessitated by service in the uniformed services.
If you believe your USERRA rights have been violated, please contact an employment attorney at Weiner & Sand LLC.